RS

FRONT PAGE CONTRIBUTOR

Partisan Politics Will Be the Only Thing that Saves Obamacare

With the news that the Supreme Court has agreed to hear the King v. Burwell case, liberals have to be wondering more than ever what they expect to have gained from the Obama presidency after eight years. The administration, predictably, is puling away to the effect that the challenge is a “partisan” challenge not mounted in good faith, and that the only reason the Supreme Court would overturn the Obamacare subsidies on these grounds would be due to improper partisan fingers on the scales of justice.

By this point these particular attacks might seem tiresome, mainly because liberals have been making them for months. Back when the D.C. Circuit invalidated the Obamacare subsidies on the same grounds, a bunch of non-lawyer liberals eagerly cropped up to bash the Supreme Court for being a bunch of partisan hacks – and that was before the Supreme Court even agreed to hear the case. As a political matter, this attack on the Court’s legitimacy is at least potentially smart. After all, the going theory is that the only thing that saved Obamacare from being invalidated on Commerce Clause grounds is that John Roberts did not the Court’s legitimacy suffering a potential blow if Amerians perceived that the Court overturned Obamacare on partisan lines.

In truth, however, if not for partisan politics, the Halbig line of attacks on Obamacare would be almost certain to succeed. As we have discussed here before, in the absence of political concerns, this would not be a very close call at all. If this were a normal regulation on a politically non-controversial topic, and the government agency in question were attempting to interpret “state” as “federal” where the statue clearly distinguished between the two, the agency’s regulation would be a dead duck, legally.

The critics of the Halbig/King plaintiffs claim that Congressional intent and legislative history indicate that Congress never meant to draw this distinction between the Federal and State exchanges. These arguments have been exposed as either spurious or outright false. However, these arguments are somewhat of a red herring, even in their invalidity. A basic canon of statutory construction is that a court should only examine secondary matters like legislative history when the text of a statute is ambiguous – and in this case, it is clearly not.

If not for institutional concern on the part of the Court that invalidating the IRS regulation would create a partisan row, the Obamacare exchanges in about 35 states would be in even graver danger than they are. In other words, partisan politics is not what’s endangering Obamacare; rather, it’s the only thing that might save it. And the administration knows this, which is why they’ve already begun playing partisan games with the Court.